The court’s equal sharing principle in financial remedy cases was established in the House of Lords two decades ago. It strived for equality and sought to eliminate discrimination between two spouses in their respective roles by ensuring that the breadwinner’s contribution did not weigh heavier than that of the homemaker and child-carer. Judicial discretion is exercised through a ‘yardstick of equality’ to be applied once the relationship generated needs and compensation have been considered.  

Six years later, in a case concerning a short marriage, the majority of the House of Lords indicated that there may be some exceptions to the straightforward application of an equal sharing principle that ensures an equal division of the matrimonial assets. Much depends on the nature of the way the couple have run their lives, for example – retaining financial independence from one another during the marriage and whether non-family assets were generated by the efforts of one party. Here, the case concerned a short, ‘childless’ marriage. Whilst the existence of children may impact on the respective needs of the parties and their ability to generate income, there is no authority for the proposition that the absence of children in a marriage has an impact on the application of the sharing principle. To do so may be discriminatory in its impact on older and same-sex couples.  

Earlier this year, in a financial remedies case concerning a short marriage, it was further clarified that the absence of children should have no influence on the application of the equal sharing principle. The court’s application of the sharing principle should almost invariably start and finish with ‘a marriage is a marriage’. The sharing principle looks at the value of assets accrued during the marriage, and deeming the contributions to be equal, divides that value equally. Here, the husband sought to rely on the fact that the marriage was short and childless. The assets were largely business assets generated solely by the husband during a short marriage, the outcome after compensation being a division of the assets of 79% to the husband and 21% to the wife.  

In a small number of cases where business or investment assets – as distinct from family assets –  have been generated over a short period of time, a departure from the equal sharing of assets may be justified. The rationale underlying the sharing principle is as applicable to business assets as to family assets. Other non-family assets to which the yardstick of equality may be applied to a lesser extent, particularly in short marriages, include property that the parties bring into the marriage or acquired by inheritance or gift during the marriage. The court is expressly required to take into account the duration of the marriage under section 25(2)(d) but there is no statutory definition of a short marriage. This departure from the sharing principle may apply only rarely to short marriages or when determining those involving ‘dual earners’ who may have jointly contributed to the matrimonial assets yet retained a degree of financial independence from one another.

Whilst this may appear to be a departure from the equal sharing principle, and an approach that risks being discriminatory, it will be confined to extremely rare situations. A short marriage is still a marriage of equals.

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